Non-commercial uses of images: do non-profits need model releases?

In the spirit of my recent accouncement of my latest book on model releases, I thought it apropos to post a blog entry I have had in the queue for a while: whether non-profit organizations are immune from the need for model releases for whatever they publish: promotions, newsletters, fund-raisers, etc. At the heart of this question is what is meant by "commercial vs. non-commercial use."

It started when I read a blog entry from a site that caters to non-profits. It had this text:

"...if you are publishing a photo for information or educational purposes, not commercial purposes like product advertising, you can typically print it without a model release. The majority of non-profit publications fall into this category."

The premise here is erroneous: that non-profits fall into the category of "non-commercial users." This is not the case, and this misunderstanding lies in what is meant by "commercial use." Most people associate this expression with advertising and promotion of for-profit products and services. Yet, those are not the only uses covered by the law surrounding privacy and publicity laws. And it's those laws that stipulate whether consent is required from a person to publish a photo of them. (A model release is what grants that consent.)

These laws are not based on "commerce" as people traditionally think of it, but around how people are represented, regardless of the kind of business the publisher (user of the photo) happens to be. Whether a person's likeness is being used to advance a cause, an agenda, or any number of things, these are really the core of the intent of the law.

Federal statutes exist that protect people's rights of publicity, and about half the states in the US have additional statutes that go beyond those basic principles. A good example of this is found in the California Code 3344, which can be viewed here.

You'll note that there is no text in any of this language that talks about whether money is made, or the status of the publisher of the image, such as whether it is a for-profit or non-profit. This is not what is meant by "commercial"... Instead, it really refers to "in the course of business," and to differentiate the use from news reporting and other uses protected by the First Amendment.

For purposes of model releases, it's the use of the image that matters, and non-profits are businesses, like any other: they have staff, letterhead, advertising and marketing budgets. This is all part of "normal course of business," otherwise known as "commerce." Accordingly, when they publish photos of people, there may be a need for model releases that applies no differently than for for-profit companies.

Further supporting the notion that the law is not intended to exempt non-profits is the fact that the statute does not define what "services" are. A non-profit that delivers food to the homeless is providing a service, as is a non-profit that advocates humane treatment of animals, or that provides assistance to war veterans, or religious groups that teach reading, or HIV/AIDS groups that provide support services, or gay and lesbian organizations, and so on. If the assumption made by the quote on the non-profit blog mentioned above were true, it would be that these organizations would be exempt from requiring a release from using a photo of someone because they are non-profits. As you can imagine, any one of these organizations may or may not be supported by everyone in the country, so could it really be that they could use photos of anyone they wanted for any reason, without their consent? That's an easy "no." Imagine how upset you would be if a non-profit that advocated a cause you don't support were to use a photo of you in an ad.

This is what federal and state statutes are there for: to prevent this sort of unfettered use of people's likenesses. Nowhere does any statute state whether "money" as anything to do with any of these transactions or companies.

But, don't let this reality jolt make you think that all non-profits have to get releases for all photos they use. And since non-profits are treated identically to for-profits, it may even be more surprising to learn that for-profit companies don't necessarily need releases for all the photos they use in ads either. And this potential lack of a need for a release lies in an infrequently-read subsection (e) of the same California Code 3344, which reads:

The use of a (...) photograph, or likeness in a commercial medium shall not constitute a use for which consent is required (...) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the photograph or likeness was so directly connected with the commercial sponsorship (...) as to constitute a use for which consent is required (...)

In other words, the person has to look like they are somehow advocates or sponsors of the underlying product or service. In the simplest case, just because a website, magazine, newspaper, or newsletter may have ads in it does not suddenly trigger the need for a release from the people who may happen to be in photos on the same page. Just having a photo of someone is not the test -- it's whether there is an implied association (or affiliation) between the person/people in the photo and the "user" (publisher) of the photo, or the advertiser. (Hint: you see ads on the same page as articles in newspapers. That's no different than ads on a web page that happens to have editorial content and photos of people. Readers know the difference between an ad and an article, at least in most mainstream publications.)

Obviously, this is highly subjective, as well as highly-dependent on the given photo and the given use. All of this is entirely (and somewhat arbitrarily) up to the whims and opinions of judges. Not that there's anything wrong with that. But, it's this lack of specificity that allows people's assumptions to lead them astray.

In effect, this new understanding of subsection (e) introduces a brand new view that you probably didn't expect: just because someone is recognizable in a photo and that photo is used in an ad, it does not necessarily trigger the need for a release. Subsection (e) states that the person in the photo must appear to be "directly connected with the sponsorship." If you were to have a close-up photo of a person looking directly into the camera with text over his face saying, "I have AIDS," the implied between the person in the photo and the organization is pretty strong. However, a photo of a local band that happened to be playing at an outdoor event that happened to benefit the non-profit could show up in a newsletter to members with a far less likely need for a release. Is there an implied association? Perhaps, but it's far more benign and less likely to be objectionable to the band members (or they wouldn't have played the gig in the first place).

Between those two endpoints is an infinitely large number of possibilities for how someone might look as to determine whether they are "directly connected" to the published use of the photo, and whether that person would be likely to object.

And it's that analysis that leads us to real-world events and how they often don't reflect academic discussion, or even the laws themselves. This is why most non-profits don't think or care about having releases: most of the time, nothing happens and no one cares. But it's still important to mention, because the law is the law, after all.

In conclusion, despite the fact that this was about non-profits, it turns out that they aren't different than any other organization. What this topic is really about is what is meant by "commercial use." It's not what people think -- that money is made or has changed hands because someone's likeness was used. Privacy and publicity laws are written to address people's rights as to how they are represented, and whom they can be implicitly associated with, regardless of whether money plays a role. If a company violates those rights by publishing an unreleased photo that can imply an association, _then_ it becomes all about money. Theirs.